Western Sahara: Questions of Neutrality?

For decades, Algeria has been the major supporter of the Sahrawi liberation movement (Frente Polisario) in its struggle against Moroccan occupying forces. This support not only takes place on the diplomatic plane, but also with regard to the proliferation of weapons to Frente Polisario and the granting of exile to the Sahrawi Government in Tindouf. While a partly similar setting in the Russian invasion of Ukraine has led to renewed public debates on issues of international law (e.g., here, here, and here), the armed conflict in Western Sahara remains a largely forgotten conflict. This is true notwithstanding its new escalation in 2020, which has virtually attracted no attention. This blogpost seeks to apply the law of neutrality to the conflict and discusses the consequences. While sometimes the law of neutrality, which governs the relations between parties to a conflict vis à vis third States and entails the duties of impartiality and non-participation, appears to be obsolete, there is ongoing state practice, national jurisprudence, and international jurisprudence, rendering it an integral part of customary international law.

Applicability of the Law of Neutrality

The ICJ has affirmed that the law of neutrality is applicable to “all international armed conflict” (IAC) (para. 89). The ICTY has defined IAC as “a resort to armed force between States” (para. 70). There clearly is a use of armed force in the conflict (see, e.g., here). Western Sahara’s statehood must, however, be denied in light of a lacking effective government, which is exercised by Morocco over most of the Sahrawi territory. Thus, prima facie it would appear that the Western Sahara conflict would be a non-international armed conflict (NIAC) to which the law of neutrality does not apply.

International law, however, provides for the possibility of ‘internationalisation’ of a conflict. This can be defined as “the process of transformation of the legal nature of a prima facie NIAC, which renders the law of IAC applicable to such a conflict”. To this end, the nature of the conflict in Western Sahara as a ‘war of national liberation’ gains pivotal importance. The notion that such conflicts should be considered international in nature has led to the inclusion of Art. 1 (4) into the first additional protocol to the Geneva Conventions (AP I). Accordingly, internationalised conflicts include such where “peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”. This norm can be applied to the conflict in Western Sahara: The right to self-determination of the Sahrawi people has been acknowledged by the General Assembly (UNGA) and the ICJ. Moreover, Western Sahara currently is under alien occupation, which is defined to cover “cases of partial or total occupation of a territory which has not yet been fully formed as a state.”

Art. 1 (4) is given effect through the process established in Art. 96 (3) AP I. Accordingly, the “authority representing a people engaged against a High Contracting Party in [a war of national liberation], may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depositary”, namely the Swiss Federal Council (Art. 93 AP I). Notably, Morocco has ratified AP I on 3 June 2011, thus becoming a High Contracting Party. Furtherly, Polisario has been repeatedly referred to by the UNGA as the “representative of the people of Western Sahara”. As such, it has issued its unilateral declaration under Art. 96 (3) AP I on 21 June 2015. Five days later, the Swiss Federal Council informed the other states parties that it had accepted Polisario’s declaration, thus giving it effect. Strikingly, this was the first time ever that such a unilateral declaration has been accepted.

Notably, Morocco replied to these developments by denouncing the depositary’s decision and even claiming that there would be no situation of armed conflict in Western Sahara. This, however, does not have an impact on the effect of the acceptance of the declaration since it is unilateral in nature and, hence, not dependent on the State actor’s consent. Accordingly, it must be concluded that the conflict in Western Sahara has been transformed into an IAC, thus, rendering the law of neutrality applicable. This also implies that third party interference in the conflict must be assessed by the standards of neutrality law rather than the prohibition of intervention.

As a counterargument, one might put forward that the procedure of Art. 96 (3) AP I merely renders the Geneva Conventions and AP I applicable, but not the law of neutrality, which is mainly codified in the Hague Conventions (HC) V and XIII. However, these two conventions can be viewed as mainly declaratory of international custom and AP I has explicit regard to neutral States in Arts. 9 and 19.

Breach and Consequences

It appears rather obvious that Algeria’s involvement in the conflict is in breach of its duties under the law of neutrality: The supply of arms and other war material is customarily forbidden, as codified in Art. 6 HC XIII. Also the granting of exile to the Sahrawi government, which is coordinating attacks against the Moroccan military from Algeria, is incompatible with the inviolability of neutral territory by the belligerents (Arts. 1-4 HC V).

Such a violation of neutrality law allows the affected state to resort to reprisals. That is, Morocco may employ measures to coerce Algeria into abiding by the law of neutrality again. Those measures must, however, be proportional to the breach. Accordingly, reprisals may not include the use of force except where the original violation would constitute an armed attack giving effect to Art. 51 UNCh. The proliferation of weapons cannot be considered an armed attack. Furthermore, it is worth considering that Algeria’s breach of the law of neutrality does not automatically result in its accession as a party to the armed conflict. Rather, a certain direct operational connection to and participation in the hostilities would be needed, which is not given with regard to supplying arms nor the mere granting of exile.

Justifications for Breaches of Neutrality Law?

This blogpost has argued that the law of neutrality is applicable to the conflict in Western Sahara, Algeria is violating its duties thereunder, and Morocco may resort to reprisals. This result is somewhat unsettling, as Frente Polisario is righteously pursuing the realisation of the Sahrawi right to self-determination recognised by the ICJ and the UNGA, and reaffirmed by the internationalisation of the conflict. This raises the further question whether a breach of the law of neutrality may be justifiable. Typically, this question is addressed with regard to acts of aggression and collective self-defence. Within that context, arguably, only a Security Council resolution may serve as a sufficient legal yardstick to justify the support of the victim. Facing a veto in the Security Council, also a ‘Uniting for Peace’ (U4P) resolution by the UNGA will be sufficient to establish the aggression, especially if adopted by a two-thirds majority. Analogically, one can argue that a Security Council or U4P resolution establishing a violation of the right to self-determination and allowing for the enhanced support of a national liberation movement would also suffice. Such resolutions would, however, require international attention, which is not paid to the conflict in Western Sahara despite urgent calls. It remains to be seen whether recent submissions that a(n aggressor) State’s obvious determination to ignore core principles and rules of international law should serve as a viable justification will actually lead to a paradigm shift in international law.

The more pertinent question in this case is whether the right to self-determination may serve as a justification for breaches of the law of neutrality. In light of the consideration of the right to self-determination as ius cogens by the ILC, Arts. 40, 41 of the Draft Articles on State Responsibility merit particular attention. To this end, it is questionable whether the situation in Western Sahara qualifies as a “serious breach” of ius cogens under Art. 40 and what the exact consequences of this would be. Art. 41 suggests that the main outcome should be the duty not to support Morocco and not to recognise the occupation of Sahrawi territory as lawful. Notably, the duty to cooperate to bring to an end the serious breach (Art. 41 (1)) could be interpreted to allow for a breach of neutrality law as in the present case. However, the commentary to this paragraph essentially leaves open what exactly such cooperation may entail and rather refers to joint action organised in international bodies such as the UN, which again meets the problem of lacking attention.

In addition, it is worth noting that the Friendly Relations Declaration recognises that national liberation movements are “entitled to seek and to receive support in accordance with the purposes and principles of the Charter.” Accordingly, some authors have considered the possibility of (material or even forceful) support granted to national liberation movements being lawful (see here, here, and here). Unfortunately, in Nicaragua the ICJ declined to rule on this issue (para. 206). In his dissenting opinion, however, Judge Schwebel argues that moral, political and humanitarian assistance should be lawful, while there is no universally recognised and accepted right to such and further intervention would be unlawful (para. 180). This does not provide lots of merit to the legality of the proliferation of weapons. Nevertheless, questions of neutrality with regard to national liberation movements have never been completely clarified. While such questions are, in principle, peculiar to the context of decolonisation, the recent internationalisation of the conflict in Western Sahara demonstrates that they are not at all obsolete and merit further legal research.

Conclusions

The law of neutrality has witnessed a renaissance in international legal scholarship due to the Russian aggression in Ukraine. This momentum should also be used to address the unanswered questions of the interplay between neutrality and the right to self-determination. While such considerations merit scholarly debate, what the conflict in Western Sahara really needs is international attention and Security Council action.